People v. Naclerio

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered August 6, 1974, convicting him of robbery in the first and second degrees, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of robbery in the second degree, and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed. The People correctly concede that on this record the appellant could not have committed the crime of robbery in the first degree without, at the same time, having committed the crime of robbery in the second degree (see People v Williams, 50 AD2d 911; People v Grier, 37 NY2d 847; People v Pyles, 44 AD2d 784). We note that the judgment of conviction of the codefendant in this case was affirmed upon this very record (People v *664Poveromo, 49 AD2d 928, mot for lv to app den by Cooke, J., Dec. 3, 1975). Rabin, Acting P. J., Shapiro, Titone and O’Connor, JJ., concur.